多方臨時上訴仲裁安排第一案對WTO 爭端解決機制改革的意義

The First Case under Multi-Party Interim Appeal Arbitration Arrangement and Its Implications for the Reform of WTO Dispute Settlement System

中國、歐盟等WTO 成員建立的多方臨時上訴仲裁安排(MPIA) ，吸收借鑒了旨在回應美國對上訴機構部分“關切＂的沃克方案的相關建議。哥倫比亞—冷凍薯條案是MPIA 付諸實踐的第一案，其不僅檢驗了MPIA 的創新性制度安排，而且明確偏離了上訴機構針對《反傾銷協定》第17.6(ii) 條採取的順次方法。該案及土耳其—藥品案仲裁庭還以澄清方式偏離了上訴機構的另外兩項裁決。就WTO 爭端解決機制改革而言，應積極靈活運用MPIA 創新性設置的程序性和實質性措施提議機制；在先例問題上，明確偏離上訴機構裁決應遵循“強有力理由“標準，但可以謹慎通過澄清方式偏離並完善部分上訴機構裁決；此外還應優化WTO 裁決的表述方式。

The Multi-Party Interim Appeal Arbitration Arrangement (MPIA), which were established by a number of WTO members including China and the European Union, has absorbed and drawn on the relevant proposals of the Walker Plan aiming at responding to some ''concerns'' of the United States about the Appellate Body. The Colombia-Frozen Fries case is the first case putting MPIA into effect, which not only tested the innovative institutional arrangements of MPIA, but also clearly deviated from the sequential approach adopted by the Appellate Body with respect to Article 17.6 (ii) of the Anti-Dumping Agreement. The arbitral tribunals in this case and the Turkey-Pharmaceutical Products (EU) case also deviated from the other two rulings of the Appellate Body by way of clarification. In terms of the reform of the WTO dispute settlement system, the procedural and substantive measures proposal mechanism set up innovatively by the MPIA should be actively and flexibly applied. On the issue of precedents, clear deviation from the Appellate Body' s rulings should follow the standard of ''cogent reasons'', but some rulings of the Appellate Body can be prudently deviated from and improved by means of clarification. In addition, the phrasing of WTO rulings should also be optimized.